How are property settlements resolved?

After a separation, the property, debts and superannuation of a couple need to be divided. There is a lot of misinformation about how that happens. This article sets out how a property settlement is actually reached in Western Australia, and corrects three common misconceptions.

Which law applies

In Western Australia, all property settlements, whether for married or de facto couples, are dealt with by the Family Court of Western Australia. The law it applies depends on the relationship:

(a) for married couples, the Family Law Act 1975 (Cth), which was substantially changed on 10 June 2025;

(b) for de facto couples, Part 5A of the Family Court Act 1997 (WA). Western Australia has not adopted the June 2025 changes, so its provision, s 205ZG, still follows the older form;

(c) for a WA de facto couple's superannuation, Part VIIIC of the federal Act, which has applied since 28 September 2022.

In practice the outcome is reached in a similar way under both Acts, but the differences matter at the edges, as explained below.

Misconception one: only a court can decide

Most separating couples reach their own agreement without a trial. They negotiate directly or through lawyers, or use mediation. Once they agree, there are two main ways to make the agreement binding:

(a) consent orders: the couple file an application with the agreed orders, and the court makes them if it considers them just and equitable. Neither person normally has to attend court; or

(b) a binding financial agreement: a private contract that meets strict requirements, including independent legal advice for each person before signing.

An informal agreement, even a written one, does not finally settle anyone's claim. Either person could still apply to the court later, within the time limits.

Misconception two: everything is split 50/50

There is no rule that property is divided equally. For a married couple, s 79 of the federal Act now sets out what the court must do. It:

(a) identifies the existing legal and equitable interests in the property, and the liabilities, of both people;

(b) considers each person's contributions: financial contributions, such as income and assets brought into the relationship; non-financial contributions, such as renovating a home; and contributions as homemaker and parent. The effect of any family violence on a person's ability to contribute is also considered;

(c) considers each person's current and future circumstances, such as age, health, income, earning capacity and the care of children. Since June 2025 this includes the economic effect of family violence, any wastage of property caused intentionally or recklessly, and liabilities;

(d) stands back and asks whether the actual result is just and equitable.

For a WA de facto couple, s 205ZG requires the court to be satisfied the order is just and equitable, and to consider contributions and the future-needs factors in s 205ZD. It does not contain the new family violence and wastage provisions.

The outcome is a matter of judgement on the evidence, and every case is different. The court is not bound by percentages from other cases.

Misconception three: one gender comes out ahead

The law does not favour either gender. Where one person ends up with more, it is usually because of the factors above: for example, that person has the main care of young children, earns much less, or has a lower capacity to earn after years out of paid work. Those factors can apply to either parent.

Disclosure comes first

None of this can happen without full disclosure. Each person must disclose all their financial circumstances: property, debts, income, superannuation, interests in trusts and companies, and recent dealings with assets. Since 10 June 2025 this has been a duty under s 71B of the federal Act for married couples, starting before any case is filed. For WA de facto couples the same duty comes from the Family Court Rules 2021 (WA), r 197. A party who does not disclose can face costs orders, and an order made without proper disclosure can be set aside later.

The usual sequence

A typical property settlement runs in this order:

(a) gather and exchange financial documents;

(b) value the property, including the home, any business and superannuation;

(c) negotiate, directly, through lawyers or at mediation;

(d) if agreement is reached, record it in consent orders or a binding financial agreement;

(e) if not, file an application for the court to decide, within the time limit.

This article is general information, not legal advice.